Judge tells Meredith museum owner to be careful in comments about Mayhew Funeral Home
By GAIL OBER, LACONIA DAILY SUN
OSSIPEE — A Carroll County Superior Court judge warned Douglas Frederick, the owner of the American Police Motorcycle Museum in Meredith, that things he says in public about his neighbor, Mayhew Funeral Home, could potentially get him in trouble.
After a 45-minute hearing, Judge Amy Ignatius did not issue a ruling from the bench about Peter Mayhew's request for a temporary restraining order to make Frederick stop saying bad things in public about his crematorium. She said she would issue a written order shortly.
"The defendants (the Fredericks) need to understand there are consequences to speech," she said cautioning both neighbors to try to become more neighborly.
The public squabble between the two began in earnest this spring when Frederick attended a Meredith selectmen's meeting and publicly complained about what he said are offensive smells and noise coming from the funeral home's crematorium next door to his motorcycle museum. Selectmen told him that the crematorium is a permitted use but Frederick continued attending selectmen's meetings and has said he will continue to do so until something is done about the chimney at the funeral home's building.
Mayhew filed suit last week in Belknap County Superior Court to stop Frederick but the case was moved to Carroll County because of a conflict with Judge James O'Neill and at least on of the parties.
As to the history of Frederick and Mayhew, Frederick's attorney, William Woodbury, said his client purchased the building on Daniel Webster Highway on June 8, 2010, with the intent of opening a museum. He said the town issued a permit for the crematorium on June 9, 2010, so Fredrick had no way of knowing he was going to be next door to a crematorium.
Mayhew is represented by attorney Marc Van Zanten, who said the impact of Frederick's public complaints has been very emotional for Mayhew and has damaged the dignity and respect he needs to conduct a very sensitive and emotional funeral home business.
Van Zanten said the town has told Mayhew he is not in violation of any ordinances, the state Funeral Directors Association has said the crematorium is not in violation of its rules and the state Department of Environmental Services has done an inspection and found nothing amiss.
Woodbury told the court that the DES only did a visual test once a month. He said Frederick says foul odors are a regular events and the noise of the furnace is "like a jet engine," but it has waned over the past few months.
Woodbury presented photographs to the judge of what he said were ashes and debris on the motorcycles in Frederick's museum, which he said are wiped down every evening. He said one of the photos he submitted showed a tarp that is used to cover a motorcycle with small burn holes in it.
A different picture showed that the chimney for the crematorium is lower that the second floor of Fredrick's property. In the past he has suggested it be made taller.
He said the Fredericks are being forced to abandon their dream retirement project because "there is no way they can continue to operate." Woodbury also said that there could be a counter claim that Mayhew's crematorium is causing a public and private nuisance.
When Ignatius asked if there could be a second source of the ashes, Van Zanten said there is another neighbor nearby with something she burns.
As to the request to silence his client, Woodbury cited two high court cases that determined that censuring the right to free speech is unconstitutional and violates the doctrine of prior restraint. He said Frederick never meant for the media to report the story and that he was exercising his rights as a citizen to address a public body, namely the selectmen.
Van Zander said the cases cited by Woodbury were focused on free speech and prior restraint as it pertains to the media and not to an individual.
The doctrine of prior restraint is typically cited when government tries to prevent the media from reporting something. It places an extremely high burden on the petitioner requesting censorship to prove that it is warranted.
Van Zander said that it is his belief that Frederick intended to try this issue in the media all along and knew the media attended the selectmen's meetings.
"Private speech can be restricted," said Van Zander. "The courts have looked at this issue and private speech can have a marked impact."
Woodbury replied that just because Frederick isn't a member of the press it doesn't mean he "can't speak his mind."